May 04, 2001 A Lawsuit Q&A With ABA President Neal Coonerty Recently ABA President Neal Coonerty spoke with BTW and answered some of the key questions that members have been asking regarding the April 19 settlement of the lawsuit against Barnes & Noble and Borders. BTW: Published reports in the trade and consumer press have noted that ABA spent approximately $18 million in this legal action against the chains, and you and ABA CEO Avin Mark Domnitz have said that the high cost of carrying on the litigation was one of the factors in deciding to accept the settlement offer from the chains. Coonerty: The money flowing out for this litigation was substantial and sobering. Taking on two major corporations at once is not cheap, and we didn't expect it to be. However, I believe ABA's commitment to legal advocacy on behalf of independent booksellers has been a good investment and has definitely delivered solid results that are well worth the expense. The terms available today to independent bookstores, from discounts to free-freight policies to the narrowing gap between chains' and independents' terms, are a far cry from what they were seven years ago when the ABA began litigating for a level playing field. Today almost all publishers have flattened their discount schedules and most have gone to free freight. I believe that these, and other changes, are a direct result of the legal actions that began in 1994, continuing right through to the lawsuit against the chains. As for cost, $18 million is clearly a major commitment of resources, but, I believe, this figure must be seen in a larger context. If we take into account, on the one hand, all the legal fees ABA recouped in the suits against the publishers, as well as the Penguin settlement and the almost $5 million we received in this settlement and balance it against all the monies spent on legal actions since 1994, we see that ABA has spent a bit under $1 million a year for the last seven years in advocacy. Now, is $1 million a good deal of money? Yes, certainly. But if that investment has helped secure the future of independent bookseller in this country, which I truly believe it has, and if that expenditure was in response to what our members said was ABA's most important mission, then I believe it was money well worth spending. I think there's another important related fact here, too. BTW: What's that? Coonerty: Unlike most settlements of this kind, we have not given up our right to litigate illegal trade practices if we believe it is necessary. And the money we received in the settlement means that we have the resources to "keep the light on" on behalf of our members. BTW: Anytime you have a legal settlement where there are not absolutely clear-cut winners and losers, I suppose questions will be raised regarding the quality of legal representation … Coonerty: Let me jump in here, because I think you might be referring to some reports in the trade press that, I believe, were-probably unintentionally-very unfair to our legal team. I was in the courtroom, and I saw it very differently than some reporters. BTW: I think there may have been questions raised by members independent of any coverage, just by the nature of the settlement. Coonerty: Well, I think it's very important to address any questions about this as clearly as possible. We had an incredible legal team from Jenner & Block. We've known they were skilled and passionate advocates on behalf of independent booksellers for many years now, for some of them have been with us since our initial suit against the publishers in 1994. I have worked closely with them and have seen firsthand how hard they worked with the bookseller plaintiffs, how tenacious they were throughout the discovery process leading up to the trial, and how well they acquitted our case in court. Legal action of this kind doesn't come cheap, but their motivation to put on the best case possible did not come from money. David DeBruin, our lead trial counsel, and the rest of the team in San Francisco were behind our case as fully and passionately as any independent bookseller could wish for. I was never disappointed in our legal representation. BTW: According to the terms of the agreement, all documents and depositions gained in discovery must be destroyed. Doesn't that raise the question that much of what was uncovered in the case will be lost? Coonerty: Fortunately, no. The reality of the situation is that the key points, the most important discoveries, were introduced into the public record during the trial and all that material can now be reviewed by all booksellers. Yes, a lot of material will be destroyed, but we know, and have made public, the highlights of what was uncovered. All that material is available on BookWeb.org, and, in addition, member bookstores will very soon be receiving a special publication of BTW's full trial coverage. There, I got a plug in for you! Seriously though, I really want to reassure members that very, very little of the most important material failed to make it into the public record. Topics: Fair Trade (B&N, Borders), About ABA,